State of Wisconsin Court of appeals District 3

Rachael Sue Banerdt p/k/a Rachael Sue Lantto, Petitioner-Respondent, V. Brian Mark Lantto Respondent-Appellant, District: 3 Appeal Number. 2012AP001029 Brief of Brian Mark Lantto On Appeal from the Brown County District 5 Judge: Mark Hammer Circuit Case No. 2010FA000850

Dated: 26rd October 2012 Brian Mark Lantto 1910 Sugar Loaf Ave #27 Marquette, Michigan 49855

Table of contents Table of authorities3 Statement of issues4 Oral argument5 Statement of the case5 Statement of the Facts8 Argument.9 Conclusion12 Signed certificate of word/page count..14

Table of Authorities: Procedural Due Process Federal Poverty Guidelines Federal Cases Federal Poverty Guidelines State Statutes Wis Stat 901.02

Wis Stat767.511 State Cases Edwards v. Edwards 97 Wis 2nd 111 293 N.W.2d 160(1980)

Statement of Issues: A. Has Judge Hammers court violated evidentiary standards WCL 901.02?

A.

Trial Court: No B. Has Judge Hammers court violated Edwards v. Edwards by failing to take into consideration the needs of the children or Mr. Lanttos ability to pay? Trial Court: No

C.

Can Wisconsin statute 767.511 be used to estimate changes in child support for future dates? Trial Court: Yes

D.

Can Wisconsin courts violate federal poverty guidelines in an interstate child support case? Trial Court: Yes

Statement on Oral Argument and Publication No oral argument is necessary for this case, if it is deemed needed the court should remove the bench warrant so Mr. Lantto may appear unmolested. This case should be published.

Statement of the case. This case involves Respondent- Appellant Brian Lantto and Petitioner Rachael Banerdt who were married in Marquette, Michigan on August 17th 2001. The parties had two children; Rain Lantto born on May 15th 2003 and River Lantto born on May 8th 2006. The parties lived in Michigan for the majority of the marriage. Ms. Banerdt left Michigan in late 2007 and filed for separation in Sheboygan Wisconsin. The parties were divorced in Sheboygan County on January 28th 2009; Rachael Banerdt represented by Jimesue Knowlton of Legal Action Wisconsin, Brian Lantto represented pro se. Rachael Banerdt received the couples automobile, all bank accounts and liquid cash assets, and all of the household items. Mr. Lanttos child support was set at $70 a month based on the percentage standard and the variable expenses were to be split 50/50 between them. A parenting plan was not filed at the time of divorce. At the time of divorce both Ms. Banerdt and Mr. Lantto were students in graduate school. Ms. Banerdt left Sheboygan County with the children to move the into her boyfriends apartment in Green Bay, in February 2009 as she was pregnant. Ms. Banerdt

did not update her address with either Mr. Lantto or the court. Ms. Banerdt petitioned the Sheboygan County child support agency to pursue a modification in child support in Sheboygan COunty. Ms. Banerdt claimed that she had a change in circumstances under Wisconsin law due to the fact that the moved into her boyfriends apartment. Judge Bolgerts Court denied the motion for a change in child support and ordered the venue changed to Brown County due to the fact that Ms. Banerdt did not live in Sheboygan County any more. In 2011, Ms. Banerdt moved again From Green Bay to DePere and again did not update the court or Mr. Lantto with her new address. Ms. Banerdt again petitioned for a modification in child support this time in Brown County, on April 29th 2011. Mr. Lantto disclosed financial information showing $7.40 an hour at 17 hours a week. Upon receiving notification of the hearing Mr. Lantto filled out a parenting time form and submitted it to both the court and Ms. Banerdt. At the hearing with Pheobe Nix Ms. Banerdt testified that she did not want Mr. Lantto in the childrens lives and testified that Mr. Lantto was done with school. Mr. Lantto contested both issues, and Commissioner Nix took leave to mail the decision. Ms. Banerdt and her boyfriend Andrew Duchow mailed letters to Commissioner Nix shortly after the hearing but before she wrote her decision. In commissioner Nixs decision she increased Mr. Lanttos child support, and denied the parenting plan as she did not know if it had been served on the other party. Mr. Lantto produced proof he was still in school and filed for a De Novo hearing which was scheduled for July 5th in Brown County Branch 5 with Judge Mark Hammer. Until now Mr. Lantto had appeared by phone in all of these court proceedings but came to Wisconsin for the hearing he scheduled.
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Mr. Lantto stated that both parties were in graduate school at the time of the divorce, and both parties are still in graduate school. Mr. Lantto provided proof that he was still in graduate school, and requested his parenting plan be submitted. Mr. Lantto testified that he had made a request to mediation but Ms. Banerdt refused to pay half of the $200 fee. Judge hammer asked what he went to school for and what he wanted to do for a career. After Mr. Lantto explained that he wanted to be a tribal manager, Judge

Hammer asked what they make. Mr. Lantto replied around $50,000 a year. Judge Hammer then threatened Mr. Lantto with summary arrest if he did not give the testimony he wanted. Judge Hammer then requested that Ms. Banerdt try to find some variable expenses which she could say she needed. Ms. Banerdt then said that their mutual son River Lantto needed surgery, and that she had paid for glasses for the boys. Ms Banerdt offered no evidence of any kind for these variable expenses. Judge Hammer then went on to say that the boys would need some new clothes for school and suggested it would cost $1000. Judge Hammer added that if Mr. Lantto was having difficulty paying these costs he should take out some credit cards. Judge Hammer then went on the record. Judge Hammer set monthly child support at $833 based off a future $40,000 a year salary. The court then ordered Mr. Lantto to pay Ms. Banerdt $675 by 7-15-11, $105 by 8-1-11, and $500 by 8-15-11. Judge Hammer then asked child support attorney Amy Kocha to draft the written order, and scheduled a review hearing at which he dismissed Ms. Kocha.

5. Statement of the Facts. Judge hammers court decided monthly child support based on forcing Mr. Lantto to estimate what kind of employment he wanted at a future date. (56.p6)

No evidence was taken to show actual earning capacity.

Your honor, you asked me off the top of my head what I would make, and I gave you an answer about what other people have, and Im not sure 100 percent what I would get. Im not sure about the economy and(56. p5 line 17-21)

Judge Hammer made no reference on the record to when Mr. Lantto would graduate. On the record Judge Hammer that he would be setting child support based on a $40,000 a year salary, which would make his child support $833 a month starting 1/1/12. The court then ordered Mr. Lantto to pay Ms. Banerdt $675 by 7-15-11, $105 by 8-1-11, and $500 by 8-15-11. He did not take any action on moving forward on a parenting plan in any way. No evidence was given for any of these expenses. The assignment of these dates was not done for any stated reason. This left 10 days to make $675 at minimum wage while 20% of earnings were already being deducted

After supposedly taking evidence off the record to come to his decision Judge Hammer is both unaware of where both of the parties live, but also does not know Ms. Banerdts employment situation. (56. p9 line 24-29)
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6. Argument A. Has Judge Hammers court violated evidentiary standards WCL 901.02?

U.S. Citizens are protected by the constitutional right to procedural due process. Judge Hammers court stated information about employment for Mr. Lantto in the future but never took any testimony about where or when that was going to happen. He simply decided that it would happen January 1st with no evidence of any kind. Judge Hammer also refused to take evidence about employment conditions in the area. Your honor, you asked me off the top of my head what I would make, and I have you an answer about what other people have, and Im not sure 100 percent what I would get. Im not sure about the economy and(56. p5 line 17-21)

Variable expenses were ordered fraudulently by Ms. Banerdt at Judge Hammers invitation. There is no evidence of any kind pertaining to the variable expenses in any part of this case other than Ms. Banerdts testimony.

After supposedly taking evidence off the record to come to his decision Judge Hammer is both unaware of where both of the parties live, but also does not know Ms. Banerdts employment situation. (56. p9 line 24-29)

The trial court intentionally threw this case in an extreme manner towards Ms. Banerdt, and in doing so created excessive costs to the courts and all parties involved.

B. Has Judge Hammers court violated Edwards v. Edwards by failing to take into consideration the needs of the children or Mr. Lanttos ability to pay? The trial court failed to take any evidence relating to the ability of Mr. Lantto to pay the child support amounts set out in the judgment. The setting of $833 a month was arbitrary and failed to take into account debt, expenses and other factors of both parents. There is no evidence on the record to show that Mr. Lantto has the ability to pay $833 a month in child support. In Edwards v. Edwards the Wisconsin Supreme Court overturned an excessive child support based on the following: The record discloses no basis for the trial court's decision to set child support at $200 per month. The trial court made no attempt to ascertain the financial needs of Diane Edwards and the children nor the level of support from Robert Edwards which would be necessary to satisfy those needs. The court made no findings of fact pertaining to the question of child support. Edwards v. Edwards 117 [5]

C. Can Wisconsin statute 767.511 be used to estimate changes in child support for future dates? According to Wisconsin Statutory Law child support amounts are to be calculated by the following methods; (1j) Percentage standard generally required. Except as provided in sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under s. 49.22 (9).

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Had the court followed the percentage standard, it would have been based off Mr. Lanttos income at $7.40 an hour. There is no part of the law which allows for speculation on what a payee will be making into the future; a case is to be brought after that substantial change in circumstances occurs. Judge Hammer held Mr. Lantto under the threat of summary arrest in order to get the answers he wanted. Your honor, you asked me off the top of my head what I would make, and I have you an answer about what other people have, and Im not sure 100 percent what I would get. Im not sure about the economy and(56. p5 line 17-21)

Forcing testimony relating to future earning capacity is not authorized by either state or federal child support laws. It is nearly impossible to estimate what a job market will look like in the future.

After supposedly taking evidence off the record to come to his decision Judge Hammer is both unaware of where both of the parties live, but also does not know Ms. Banerdts employment situation. (56. p9 line 24-29)

767.511 (1n) (1n) Deviation from standard; record. If the court finds under sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification. If the court had deviated from the percentage standard it would have been required to justify the reasons for such a deviation under 767.511 (1n) . In this case a

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proper written order was not even issued until April of the following year, and offered no reasoning for any actions he undertook.

There is no language in Wisconsin statutory law which authorizes courts to make child support determinations based on future events.

D. Can the courts order violate federal poverty guidelines in an intrstate child support case? He ordered Mr. Lantto to pay Ms. Banerdt $675 by 7-15-11, $105 by 8-1-11, and $500 by 8-15-11. He did not take any action on moving forward on a parenting plan in any way. No evidence was given for any of these expenses. The assignment of these dates was not done for any stated reason. This left 10 days to make $675 at minimum wage while 20% of earnings were already being deducted from his check and given to Ms. Banerdt. Mr. Lantto could not have possibly made those payments on that schedule.

7. Conclusion This case should be remanded down to a lower court so a parenting plan can be entered and a reasonable and legal amount of child support be ordered. I ask that the increase of child support to $833 a month be removed from the Wisconsin Child Support Collection system which is currently attempting to enforce it. Certification and word count

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I hereby certify that this brief conforms to the rules contained in Wis. Stat. 809.19 (8) (b) for a brief and appendix produced with a proportional font. The length of this brief is 13 pages. Words 2,640

Appellants Appendix Wisconsin Court of Appeals District 3

Rachael Sue Banerdt p/k/a Rachael Sue Lantto, Petitioner-Respondent, V. Brian Mark Lantto Respondent-Appellant Appeal Number. 12AP1029

On appeal from Brown County Judge Hammer District 5 Circuit Case No. 2010FA000850

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Appendix Table of Contents Transcript of July 5th De Novo Hearing 56. 5, 6, 9..16,17,18 Wis Stat 901.0215 Wis Stat 767.511..15 Edwards v. Edwards 117 [5].15

Brian Lantto 1910 Sugar Loaf Ave. #27 Marquette, Mi 49855 906-362-1574

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767.511 (1n) (1n) Deviation from standard; record. If the court finds under sub. (1m) that use of the percentage standard is unfair to the child or the requesting party, the court shall state in writing or on the record the amount of support that would be required by using the percentage standard, the amount by which the court's order deviates from that amount, its reasons for finding that use of the percentage standard is unfair to the child or the party, its reasons for the amount of the modification and the basis for the modification 767.511 (1j) (1j) Percentage standard generally required. Except as provided in sub. (1m), the court shall determine child support payments by using the percentage standard established by the department under s. 49.22 (9)

901.02 Purpose and construction. Chapters 901 to 911 shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Edwards v. Edwards The record discloses no basis for the trial court's decision to set child support at $200 per month. The trial court made no attempt to ascertain the financial needs of Diane Edwards and the children nor the level of support from Robert Edwards which would be necessary to satisfy those needs. The court made no findings of fact pertaining to the question of child support. Edwards v. Edwards 117 [5]

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